Cole v. State

• Decision Date: 06 November 1933
• Docket Number: 30533
• Citation: 170 Miss. 800,150 So. 757
• Court: Mississippi Supreme Court
• Parties: COLE v. STATE

150 So. 757

170 Miss. 800

COLE v. STATE

No. 30533

Supreme Court of Mississippi

November 6, 1933

(In Banc.)

1. CRIMINAL LAW.

In murder prosecution, court's statement during impaneling that only insanity constituting defense is paranoia held erroneous, since true test of criminal responsibility is accused's ability to appreciate nature and quality of act when committing it and to distinguish between right and wrong.

2 HOMICIDE.

In murder prosecution, where accused pleaded insanity, refusal of instruction applying right and wrong test held reversible error, in view of court's statement that only insanity constituting defense was paranoia, and undisputed testimony that accused was not a paranoiac.

3 HOMICIDE.

Charge predicating conviction on finding that accused formed intent to murder deceased and then got drunk and carried out intent held unauthorized by evidence.

4 WITNESSES.

Decree in will contest held incompetent to show to what witness in contest testified.

SMITH C. J., and GRIFFITH, J., dissenting.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Fritz Cole was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Chaney & Culkin, of Vicksburg, for appellant.

"Paranoia" is a term used to designate the form of insanity characterized by systematized delusions; a form of mental distress known as "delusional insanity;" progressive insanity; the name given to a group of mental conceits, of which the most characteristic is a sense of injury or unjust persecution, and consequently justifiable resentment or redress. It takes the place of the terms "monomania," or "partial insanity."

32 C. J. 618, sec. 121; Mounger v. Gandy, 110 Miss. 133.

Certainly, it cannot be successfully contended in this honorable court that motive can exist without mental accountability. If the appellant was suffering mentally from any cause, to such an extent that he could not distinguish between right and wrong, can it reasonably be said that he formed in his mind some motive for the commission of the crime charged against him in this indictment?

Grissom v. State, 62 Miss. 167; Kearney v. State, 68 Miss. 233; Caffey v. State, 24 So. 315.

Announcement of trial judge, in presence of jurors, that paranoia was the only form of insanity he would recognize, was highly prejudicial to the rights of the appellant.

21 Ency. Pl. & Pr., page 994; Green v. State, 97 Miss. 834; Montgomery v. State, 85 Miss. 330; Collins v. State, 99 Miss. 47; Nelson v. State, 129 Miss. 288; 21 Ency. Pl. & Pr. 995; Cross v. Ryrone, Min., etc., Co., 121 Pa. St. 387.

It is a well settled principle of law that an instruction is erroneous in Mississippi, which is upon the weight of the evidence, or which assumes facts not disclosed by the record, or which magnifies any part of the evidence.

Gordon v. State, 95 Miss. 543; French v. Sale, 63 Miss. 386; Oliver v. State, 39 Miss. 526; Cothran v. State, 39 Miss. 541; Frank v. State, 39 Miss. 705; Spradley v. State, 31 So. 534; Cooper v. State, 80 Miss. 175; Tidwell v. State, 83 Miss. 475; Price v. State, 93 Miss. 263; Leverett v. State, 112 Miss. 395; Johnson v. State, 124 Miss. 429; Allen v. State, 139 Miss. 605.

If the appellant, at the time he is said to have committed the act charged against him, was a sufferer from some mental disease from any cause, which destroyed his capacity to distinguish between right and wrong, he was not guilty of the offense charged against him.

Ford v. State, 73 Miss. 735; Grissom v. State, 62 Miss. 167.

The jury should be left free to fix punishment.

Mathison v. State, 87 Miss. 739; Spain v. State, 59 Miss. 19.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

At the time the statement was made by the court defendant's counsel was not concerned with names and made absolutely no objection to this remark of the court. Evidently, what the court had in mind and what defendant's counsel had in his mind was the law as announced by this court in Smith v. State, 95 Miss. 786, 49 So. 945.

This court will not hold the trial court to have committed error on a matter which was not raised by way of objection at the time of the trial.

Grady v. State, 144 Miss. 778; Pickle v. State, 151 Miss. 549, 118 So. 625; Dugan v. State, 151 Miss. 781, 119 So. 298; Salmon v. State, 151 Miss. 539, 118 So. 610; Taylor v. State, 158 Miss. 505, 130 So. 502; Peters v. State, 158 Miss. 530, 130 So. 695; Pruitt v. State, 163 Miss. 47, 139 So. 861; Jackson v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 143 So. 479.

If there is no objection to an argument, there is nothing for the trial court to pass on and nothing for this court to review.

Oden v. State, 27 So. 992; Matthews v. State, 148 Miss. 696, 114 So. 816; Elmore v. State, 143 Miss. 318, 108 So. 722; King v. State, 146 Miss. 285, 111 So. 378; Fairley v. State, 152 Miss. 656, 120 So. 747; Magee v. State, 154 Miss. 671, 122 So. 766; Boutwell v. State, 161 Miss. 487, 137 So. 189; Jones v. State, 141 So. 283.

Where the defense is insanity, total or partial, the test of defendant's criminal responsibility is his ability at the time he committed the act to realize and appreciate the nature and quality thereof, his ability to distinguish right and wrong.

Grissom v. State, 62 Miss. 169; Smith v. State, 95 Miss. 786, 49 So. 945; Nelson v. State, 129 Miss. 288, 92 So. 66.

Voluntary drunkenness is not a defense to crime.

Long v. State, 141 So. 591, 163 Miss. 535.

There is no testimony in the record whatsoever that this appellant was totally or partially insane on any subject.

Ford v. State, 73 Miss. 734, 19 So. 665; Smith v. State, 95 Miss. 786, 49 So. 945.

By reference to section 985 of the Mississippi Code of 1930, particularly paragraphs (b) and (c) thereof, it will clearly appear that under our statute defining murder, intent, as such, is not a necessary ingredient.

Cook, J., Smith, C. J., dissenting.

OPINION

Cook, J.

In the circuit court of Warren county, the appellant, Fritz Cole, was convicted of the murder of Pat Henry, Jr., and was sentenced to be hanged.

The testimony shows that the appellant and one George Whitaker and Pat Henry, Jr., were friends, and had been for many years. For several hours preceding the killing, the appellant and Whitaker were together attending a ball game and riding in Whitaker's automobile. About seven o'clock P. M. they drove to the home of a young lady, where Pat Henry, Jr., was visiting. They stopped in front of this house, and Henry went out to the automobile, where, in the presence of a brother of the young woman, the three men engaged in a friendly conversation for some time. Whitaker finally went into the house, leaving Henry and the appellant engaged in conversation. Shortly thereafter Whitaker returned to the automobile and started an argument with Henry about his attentions to the young lady, which resulted in a fist fight, in which the appellant was in no way involved, either by word or act.

From the time the automobile stopped in front of the home of the young lady until after the shooting the appellant did not leave his seat in the automobile, but all the while was seated with his feet resting on the running board thereof. While Whitaker and Henry were engaged in the tussle, the appellant picked up Whitaker's automatic shotgun, which was in the automobile, and, without having said a word to anyone while the fight was in progress, and without any provocation whatever, first shot and killed Whitaker, and immediately shot and killed the said Pat Henry, Jr.

A witness for the state who appeared on the scene about the time of the shooting testified that he had a tussle with the appellant over the possession of the gun; that they finally dropped the gun and went to a nearby store; that the appellant called the proprietor, and, failing to secure admission, kicked the glass door out and entered, and that he then said to the proprietor of the store, "Call the law, somebody has been killed." The appellant testified that he drank some whisky during the afternoon preceding the killing. The two eyewitnesses to the shooting, the proprietor of the nearby store, the sheriff, and the two deputies who arrested him testified that the appellant had been drinking some, but that there was nothing in his appearance or conduct to indicate that he was drunk at the time of the shooting.

The fact of the killing was not denied, and the only defense offered was that of the insanity of the accused at the time of the shooting. In support of this defense, there was offered evidence to the effect that, after the appellant's return from approximately two years' service overseas in the World War, he was periodically insane, during which periods his mind was totally blank, and that after these periods, when his normal state of mind had returned, he remembered nothing that happened during these periods. As tending to show that the appellant suffered irrational and insane periods, there was offered evidence to the effect that on one occasion he shot and killed his entire flock of chickens for which he had built houses and which he was carefully nursing and raising. On another occasion he killed all his dogs, nine in number, of which he was very fond. On another occasion, while he was in his home with his wife, and a friend, he suddenly got out of bed, seized his pistol, and shot twice into his clock, which was on a mantel by which his friend was standing, and then seized his shotgun and shot three times into the wall of the room. Other instances of shooting by the accused at imaginary objects, and thereby endangering the lives of friends and relatives, as well as incidents indicating an unsound and...